GOVIND SHIVSHANKARLAL GUPTA Vs. M.G. MUGWE

JUDGEMENT

(1.) This is an application for writs in the nature of habeas corpus and mandamus filed by the son of one Shivshankarlal Khandelwal, who has been detained by the Commissioner of Police, Greater Bombay (respondent No. 1) since Sept. 30, 1974 under a detention order dated Sept. 26, 1974 passed by him in exercise of the powers conferred by s. 3(c) of the Maintenance of Internal Security Act, 1971 (hereinafter referred to as "The MISA"). The facts of the petitioner's case are, that the detenu, who is a citizen of India, is an importer, exporter and dealer of precious and semiprecious stones carrying on business in the name of S. Gupta and Co. since the year 1953, and is also a Member of the Committee of the Gem and Jewellery Export Promotion Council. The detenu is also a shareholder and Joint Managing Director of Messrs. Mont Blanc Hotels Private Ltd. which owns an immovable property known as Dady Seth Hill situated at Cumballa Hill, Gowali Tank Road, Bombay. The Detention Order referred to above was served upon the detenu at his residence on Sept. 30, 1974. The detenu was also served with another order also dated Sept. 26, 1974 classifying him as a Class II security prisoner and directing that he should be detained in the Thana Central Prison. On Oct. 5, 1974 the detenu's advocate was handed over a notice bearing that date which was served upon the detenu that very evening containing the grounds on which the detention order dated Sept. 26, 1974 had been made. A copy of the said notice containing the grounds of detention has been annexed to the petition and marked "D". The grounds stated therein were as follows :

(2.) On Oct. 16, 1974 the petitioner filed the present petition challenging the validity of the detention order dated Sept. 26, 1974 on various grounds. The main heads of that challenge are, that the said detention order is void, illegal and in violation of the fundamental rights guaranteed under arts. 14, 19, 21 and 22 of the Constitution of India; that the grounds of detention furnished to the detenu on Oct. 5, 1974 are false, non-existent and stale, and are ultra vires the MISA and the Ordinance amending the same ; and that the conditions of detention of the detenu are violative of the law under which he has been detained and are, in any event, in violation of his fundamental rights under arts. 14, 19 (1) (d), 21 and 22 of the Constitution. It may, at this stage, be mentioned that in the view which we are taking on this petition, we have not thought it necessary to call upon Mr. Sen for the petitioner to address us either in regard to the constitutionality of the detention order or of the conditions of the detention of the detenu.

(3.) I will now proceed to deal with each of the grounds contained in the notice dated Oct. 5, 1974 served upon the detenu in the present case which has been reproduced by me above. Before I do so, I may, however, state that the question as to which of the clauses of the said notice constitute the "grounds" of the detention order within the meaning of the Act is a matter of controversy between the parties. Fortunately, the term "grounds" has been defined by Dania, C.J. in the course of his majority judgment in the case of the State of Bombay Vs. Atmaram, already cited above, (at p. 445). The learned Chief Justice has stated that the term "grounds" means "materials on which the Detention Order was made". On being asked to clarify the position, the learned Advocate-General Mr. Adik first made a statement, which I have recorded, that cls. (a), (b) and (c) of paragraph I of the said notice dated Oct. 5, 1974 contained the three grounds on which the detention order was based, and that paras. II, III and IV were merely instances of the grounds in para. I, para. V being the conclusion to be drawn from those instances. I may mention that the words "instances indicating" which occur in the concluding portion of para. I lend support to that construction. In paragraphs 14 and 18 of the affidavit in reply also, there is a clear statement made by respondent No. 1 who has made that affidavit that paragraphs II, III and IV in the grounds furnished to the detenu are merely illustrative of the activities summarised in paragraph I. A little later on in the course of the hearing, however, the learned Advocate-General Mr. Adik made a further statement, which I have also recorded, that paragraphs II, III and IV contained all the instances on which the three grounds (a), (b) and (c) in paragraph I are based. That position is, however, clearly unsustainable in view of the fact that in respect of clause (a) in paragraph I, there is no instance of export to be found in paragraph II, III and IV; and in respect of clause (c) in paragraph I, there is no instance to be found in paragraph II, III or IV of payments in foreign currency "in full", or of "abetting" others to smuggle goods. It is precisely for that that an ill-conceived attempt is made in paragraph 17 of the affidavit in reply to connect what is stated in para. IV of the said notice dated Oct. 5, 1974 with abetment of smuggling, so as to make it out to be an "instance" of what is stated in clause (c) of paragraph I. There is, however, nothing in the transaction set out in para. IV which could possibly savour of abetment of smuggling. Still later on in the course of his arguments, the Advocate-General Mr. Adik altered his position once again and stated that the said notice dated Oct. 5, 1974 contained five grounds, viz., (1) that the detenu had been acting since 1965 in a manner prejudicial to the conservation of foreign exchange, which is contained in the opening part of paragraph I; (2) that the detenu had been under-invoicing imports and exports, which is contained in clause (a) of paragraph I; (3) that the detenu had held and retained a secret bank account abroad in foreign currency, which is contained in clause (b) of paragraph I; (4) that the detenu had utilised the foreign exchange in the said bank account for buying properties in India from persons who desired payments in foreign currency in full or in part, which is contained in clause (e) of paragraph I; and (5) that, by those activities, the detenu had been abetting others to smuggle goods, which is contained in the latter part of paragraph I. As the arguments progressed, the learned Advocate-General Mr. Adik was, however, obliged to alter his position on this point once again and ultimately accepted the stand taken by the petitioner from the very beginning, that it is only paragraphs IT, III and IV in the notice dated Oct. 5, 1974 that contained the grounds of detention. In view, however, of the categorical position taken up by the detaining authority in his own affidavit in reply that paragraphs II, III and IV are merely illustrative of what is contained in paragraph I, I see no reason why this petition should be decided on any other footing, since respondent No. 1 would be the best person to state what was in his mind when he made the detention order.